(a) Definition. The “spousal privilege” covers testimony regarding events occurring at any time, even before marriage, so long as the testimony occurs while the parties are married. The focus of the privilege is not on the content of the testimony but rather on prohibiting testimony against a spouse. A valid marriage must exist when the witness-spouse is called to testify for spousal immunity to apply.
(b) Holder of Privilege. The spouse who is a party in the case, not the testifying witness, holds the privilege. Even if the witness-spouse wishes to testify, witness-spouse cannot unless the party-spouse waives the privilege.
(c) Criminal Proceedings. A prosecutor may not compel a witness-spouse to testify against a criminal defendant-spouse during any criminal or grand jury proceeding. Only the witness-spouse, not the accused-spouse, may assert the right not to testify. Therefore, the witness-spouse may testify against the accused-spouse over the objection of the accused-spouse.
(d) Terminates upon Divorce. Spousal immunity terminates when a marriage ends pursuant to law.
(e) Family Disputes Exempt. Spousal immunity does not apply in cases involving litigation between spouses regarding domestic violence against, or incest with, family members, in any proceeding in which one spouse is charged with a crime or tort against the person or property of the other spouse or a minor child of either spouse, or in any proceeding, in the discretion of the court, if the interest of the minor child of either spouse may be adversely affected by the invocation of the privilege. Spousal immunity does not apply in civil proceedings in which spouses are adverse parties.